This panel was part of a two-part series of the Annual Survey of American Law 2017 Symposium, entitled: “Copyrighting What We Wear: A Legal and Technological Restyling.” They will host their second event on April 3, 2017 focusing on copyrighting wearable technology.

Cheerleading uniforms and color patterns took center stage as students and lawyers gathered in New York University School of Law’s Greenberg Lounge in February. A panel presented by the NYU Annual Survey of American Law focusing on Star Athletica v. Varsity Brands was the main attraction for the afternoon. As the program for the event pointed out, the panelists came from a range of backgrounds in fashion and copyright law.

The panel began with moderator Christopher Springman, Professor of Law at NYU School of Law, giving a brief overview of the case. He discussed the general facts and issues: Varsity Brands Inc. brought an action against Star Athletica, LLC, alleging infringement of its copyrighted cheerleading uniform designs. One of the key issues in the case is whether the uniforms were covered under the Copyright Act. As Springman explained, the Copyright Act does not cover works of art in general but specifically lists categories such as pictorial, graphical, and sculptural works. He also explained the issue of defining what a useful article is and whether or not you can separate the pictorial or graphical art from the function of the uniform. For those of you who would like more background about the case, check out this analysis written by one of our staff editors.

The panelists joked about how judges tend to know very little about the fashion industry, and after a laugh from the audience, the panelists began to explain their perspective on what a useful article does and whether the 6th Circuit got the case right. Several of the panelists agreed with the 6th Circuit decision. Douglas Hand, Adjunct Professor of Law at NYU School of Law, and Partner at Hand Baldachin & Amburgey LLP, agreed with the decision and said that conveying an article’s utility as what it identifies is a slippery slope. To add on to that, Springman gave an example of how a painting in your living room could function either to decorate the room, or that its only utility could be to cover a blank space on a wall.

Betsy Rosenblatt, Associate Professor of Law at Whittier Law School and Director, Center for Intellectual Property Law, argued that the shape of a garment is part of its function and where the designs are placed go hand in hand with the function of the garment. She said that textile patterns are copyrightable and that they are severable, but that the garment shapes themselves aren not because they are the useful part. She points out that everyone is focused on how, in the case of the cheerleading uniforms, the garment is difficult to separate from the shape, but then asks: is there a textile that isn’t the shape of the garment? Would it be different if it was a surface print?

The discussion considered a case that came out with the dissent of Varsity Brands, Jovani Fashion, Inc. v. Cinderella Divine, Inc. Springman described how in that case the court decided that the function of the dress was to ornament the wearer and not to cover the body. Jeff Trexler, Adjunct Professor of Law at Fordham University School of Law and Associate Director of the Fashion Law Institute, pointed out that if you follow the Jovani reasoning, then nothing can ever be copyrighted.

The next question addressed the separability argument. Springman asked how we should determine whether something is separable, considering that the 6th Circuit’s view is that something is separable if it is not necessary to the function of the garment. Barbara Kolsum, Professor of Practice at Benjamin N. Cardozo School of Law and Co-Director of the Fashion, Arts Media & Entertainment Law Center followed up the question, saying that to answer that question, we must ask whether the chevron pattern on the uniform is purely aesthetic. Rosenblatt answered with different ways that one can think about separability. One interesting perspective she mentioned was considering whether or not the creator’s decision making was completely uninhibited by functional needs. She also pushed that line of questioning and asked whether it was necessary for functional reasons, instead of whether it was uninhibited. She pointed out the difficulty of this since that would sweep everything into copyright. The fundamental question that the statute asks, according to Rosenblatt, is whether the two things can be separated conceptually. Towards the end of the panel, Kolsun quickly explained that she does not believe that this case will affect the fashion business at all. She added that in a fast fashion nation we might not want some things to be copyrightable because it could lead to doubling the price of what we buy. The panelists answered questions from the audience and encouraged everyone to think about the questions and ideas presented in the panel to consider and predict what the Supreme Court will rule.